People v. Bowling CA4/2

Filed 1/19/23 P. v. Bowling CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079323
v. (Super.Ct.No. SWF023106)
MICHAEL BOWLING, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant, Michael Bowling, filed a petition for resentencing
pursuant to Penal Code former section 1170.95,1 which the court denied. After defense
counsel filed a notice of appeal, this court appointed counsel to represent him.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),2 setting forth a
statement of the facts, a statement of the case, and two potentially arguable issues:
(1) whether the trial court erred in denying defendant’s petition without issuing an order
to show cause; and (2) whether the ameliorative provisions of section 1172.6 extend to
those convicted of attempted voluntary manslaughter.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND3
Defendant fired 10 shots from a gun at a car, hitting three people. (Bowling,
supra, E045557.) “After the trial court granted his . . . section 1118.1 motion and
1 All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended
and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
2 In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California
Supreme Court recently held that Wende and Anders procedures do not apply in appeals
from the denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.)
3 On the court’s own motion, we take judicial notice of this court’s opinion from
defendant’s appeal from the judgment (People v. Bowling (Sept. 9, 2009, E045557)
[nonpub. opn.] (Bowling)) on which defense counsel relies in his factual recitation in the
brief. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)
2
dismissed three counts of attempted murder, six criminal street gang enhancements, and
two great bodily injury allegations, a jury found [defendant] guilty of three counts of
attempted manslaughter, three counts of assault with a firearm, and made true findings on
two great bodily injury allegations and a personal use of a firearm allegation. Defendant
later admitted the allegations that he had served three prior terms in prison, and . . . had
previously been convicted of one prior serious felony and one strike. The trial court
sentenced defendant to serve a total term of 33 years eight months in prison.” (Bowling,
supra, E045557, fn. omitted.)
Defendant appealed the judgment. By opinion filed September 9, 2009, this court
affirmed but modified the sentence by reducing the three-year term imposed on an
enhancement to one year. (Bowling, supra, E045557.)
On April 5, 2022, defendant filed a form petition for resentencing pursuant to
former section 1170.95. At the hearing on the petition on June 3, 2022, the People
moved the court to dismiss the petition for defendant’s “lack of eligibility.” The People
noted that the jury convicted defendant of three counts of attempted manslaughter and
stated, “[t]here are no instructions given on aiding and abetting, natural and probable
consequences, or felony murder. [¶] . . . [T]he petition [sic] also alleges that he was the
shooter, so he’s the actual killer, [sic] he’s not eligible.”
Defense counsel noted she had consulted with defendant and objected to the
dismissal of the petition. The court asked whether defense counsel took “issue with the
People’s representation about the jury instructions that were given?” Defense counsel
responded, “No.” The court denied the petition.
3
II. DISCUSSION
Because our order of November 16, 2022, implied that we would independently
review the record for potential errors even if defendant chose not to file a supplemental
brief, we exercise our discretion to do so even though not required. (Delgadillo, supra,
14 Cal.5th at p. 230 [“[I]f the appellate court wishes, it may also exercise its discretion to
conduct its own independent review of the record in the interest of justice.”]; id at p. 232
[“[I]t is wholly within the court’s discretion [to] conduct[] its own independent review of
the record in any individual section 1172.6 appeal.”] id. at p. 233, fn. 6 [“[T]he decision to
conduct independent review is solely up to the discretion of the Courts of Appeal . . . .].)
We find no arguable issues.
III. DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
4